Vietnam: Comparing the regulations on the three different charges against Dr. Hoang Cong Luong

Crime

Violation of regulations on medical examination and treatment

Negligence that results in serious consequences

Involuntary manslaughter

Legal basis

Article 315 of the Penal Code 2015 (amended in the Penal Code 2017).

Article 360 ​​of the Penal Code 2015 (amended and supplemented in the Penal Code 2017).

Article 128 of the Penal Code 2015.

Content

Article 315. Offences against regulations on medical examination, medical treatment, manufacture, concoction, dispensing, sale of medicines or other medical services

1. Any person who violates regulations of law on medical examination, medical treatment, manufacture, concoction, dispensing, sale of medicines or other medical services in any of the following circumstances, except in the circumstances specified in Article 259 hereof shall face a penalty of 01 - 05 years' imprisonment:

a) The offence results in the death of a person;

b) The offence causes ≥ 61% WPI for another person;

c) The offence causes a total WPI of 61% - 121% for more than one person;

d) The property damage caused by the offence is assessed at from VND 100,000,000 to under VND 500,000,000.

2. This offence committed in any of the following circumstances carries a penalty of 03 - 10 years' imprisonment:

a) The offence results in the death of 02 people;

b) The offence causes a total WPI of 122% - 200% for more than one person;

c) The property damage caused by the offence is assessed at from VND 500,000,000 to under VND 1,500,000,000.

3. This offence committed in any of the following circumstances carries a penalty of 07 - 15 years' imprisonment:

a) The offence results in the death of ≥ 03 people;

b) The offence causes a total WPI ≥ 201% for ≥ 03 people;

c) The property damage caused by the offence is assessed at ≥ VND 1,500,000,000.

4. The offender might also be liable to a fine of from VND 10,000,000 to VND 50,000,000 or prohibited from holding certain positions or doing certain jobs for 01 - 05 years.”.

118. Clause 1, Clause 2 and Clause 3 of Article 316 are amended as follows:

“Any person who illegally performs an abortion on another person in any of the following circumstances shall face a penalty of up to 03 years' community sentence or 01 - 03 years' imprisonment:

a) The offence results in the death of a person;

b) The offence causes ≥ 61% WPI for another person;

c) The offence causes a total WPI of 61% - 121% for more than one person;

d) The offender has incurred a disciplinary or administrative penalty for the same offence or has an unspent conviction for the same offence .

2. This offence committed in any of the following circumstances carries a penalty of 03 - 07 years' imprisonment:

a) The offence results in the death of 02 people;

b) The offence causes a total WPI of 122% - 200% for more than one person.

3. This offence committed in any of the following circumstances carries a penalty of 07 - 15 years' imprisonment:

a) The offence results in the death of ≥ 03 people;

b) The offence causes a total WPI ≥ 201% for ≥ 03 people.

4. If this offence results in bodily harm of 01 person who suffers from 31% - 60% WPI or bodily harm to more than one person who suffer from a total WPI of 31% - 60% or the offender has incurred a disciplinary or administrative penalty for the same offence or has an unspent conviction for the same offence, the offender shall face a penalty of up to 02 year's community sentence or 03 - 24 months' imprisonment.

Article 360. Negligence that results in serious consequences

1. Any person who negligently fails to perform or correctly perform his/her in any of the following circumstances, except in the circumstances specified in Article 179, Article 308 and Article 376 hereof, shall face a penalty of up to 03 years' community sentence or 06 - 60 months' imprisonment:

a) The offence results in the death of a person;

b) The offence causes ≥ 61% WPI for another person;

c) The offence causes a total WPI of 61% - 121% for more than one person.

d) The property damage caused by the offence is assessed at from VND 100,000,000 to under VND 500,000,000.

2. This offence committed in any of the following circumstances carries a penalty of 03 - 07 years' imprisonment:

a) The offence results in the death of 02 people;

b) The offence causes a total WPI of 122% - 200% for more than one person;

c) The property damage caused by the offence is assessed at from VND 500,000,000 to under VND 1,500,000,000.

3. This offence committed in any of the following circumstances carries a penalty of 07 - 12 years' imprisonment:

a) The offence results in the death of ≥ 03 people;

b) The offence causes a total WPI of ≥ 201% for ≥ 03 people;

c) The property damage caused by the offence is assessed at ≥ VND 1,500,000,000.

4. The offender might also be prohibited from holding certain positions or doing certain jobs for 01 - 05 years.

Article 128. Involuntary manslaughter

1. A person who commits an involuntary manslaughter shall face a penalty of up to 03 years' community sentence or 01 - 5 years' imprisonment.

2. This offence carries a penalty of 03 - 10 years' imprisonment if it results in the death of 02 or more people.

Object

The violation of the state management system in healthcare, while also infringing upon the lives and health of others.

The infringement upon the activities of agencies and organizations; causing the weakening and loss of credibility and trust of the people in the system; causing serious losses and wastage of assets of agencies and organizations; causing the degeneration and corruption of officials and public servants in their agencies and organizations.

The violation of safety regulations. These are regulations aimed at ensuring the safety of life and health for individuals. These regulations belong to various different fields, and they may have been legally regulated or they may just be common social norms that have become customary practices that everyone knows.

Subject

As a general subject, it refers to individuals who have criminal responsibility and are of legal age.

As a special subject, only individuals who hold positions and powers within agencies and organizations can be the subjects of this crime.

Whether they are individuals with positions and powers or other accomplices in the case, they only become the subjects of this crime in the following cases:

- Individuals who are between 14 and under 16 years old are only held criminally responsible for the offense of negligence if it causes serious consequences, as specified in Clause 2 of Article 285 of the Penal Code, because this offense is very serious.

- Individuals under 16 years old are not held criminally responsible for the cases specified in Clause 1 of Article 285 of the Penal Code. Only individuals who are 16 years old and older are held criminally responsible for this offense, as according to the provisions of Article 12 of the Penal Code, individuals who are between 14 and under 16 years old are held criminally responsible for very serious intentional offenses and particularly serious offenses. The offense of negligence causing serious consequences specified in Clause 1 of the law is only a serious offense.

They are individuals who have criminal responsibility and are at least 16 years old.

Objective side

The crime is committed when someone violates the regulations regarding healthcare (understood as not complying, not correctly, or fully complying with the state regulations in the field of healthcare), causing damage to property, health, and human life.

The basis for holding criminal responsibility for this behavior is the damage to property, health, and human life. The consequence is an essential element of the crime.

It can be said that the offender's objective behavior is solely a lack of responsibility, and this behavior itself reflects the nature of the crime. However, the manifestations of irresponsible behavior are not the same and depend on the assigned tasks and specific circumstances when the consequences occur.

Irresponsible behavior in management and administration by individuals with positions and powers is expressed through: violating principles, policies, and regulations related to state management, human resource management, asset management, etc.

The offender commits acts that violate safety regulations. These are regulations aimed at ensuring the safety of life and health for individuals.

These regulations belong to various different fields and may have been legally regulated or may just be common social norms that have become customary practices that everyone knows and acknowledges.

Subjective side

The crime is committed with unintentional negligence.

The crime is committed with unintentional negligence.

The motive for the crime is not a necessary element for the commission of this crime. This is different from some other crimes committed by individuals with positions and powers. Therefore, when determining criminal responsibility for the offender who committed negligence resulting in serious consequences, if it is necessary to determine the motive, it only has significance in determining the punishment and does not have the meaning of establishing guilt.

The fault of the offender must be unintentional, according to the provisions of the law, which can be understood in two forms: overconfidence and carelessness.

The fault of overconfidence is manifested when the offender knows that their actions are dangerous but believes that the consequences will not occur or can be prevented, yet the consequences still occur.

The fault of carelessness is when the offender, due to carelessness, fails to foresee the potential harm to society, even though they should have foreseen or could have foreseen it.

Consequence

Serious consequences are a mandatory sign for the commission of a crime, which is serious harm to the lives and health of others. In cases where the offender's actions cause serious harm, they will be held criminally responsible. Additionally, if the person who commits the violation has previously been disciplined, administratively sanctioned, or convicted of this crime without having their record cleared and continues to violate, they will also be held criminally responsible.

The consequence of this crime is a mandatory sign for the commission of the offense, which is a serious consequence. If the consequences are very serious or exceptionally serious, the offender will be held criminally responsible according to Article 2 of the law.

The serious consequences caused by negligent behavior are damages to human life, health, dignity, honor, and property; damages to the property and reputation of organizations and institutions; and other non-material damages.

The serious consequences caused by negligent behavior are determined as an indirect cause. This is also a characteristic that distinguishes this crime from other crimes where negligent behavior is a direct cause of the consequences, such as the crime of serious negligence causing significant damage to state property.

The criminal behavior has resulted in fatal consequences. This consequence is a mandatory element of the commission of the crime.

Penalty

- For cases falling under the basic elements: The offender can be sentenced to imprisonment from 01 year to 05 years.

- For cases falling under aggravated elements: The offender can be sentenced to imprisonment from 03 years to 10 years (Clause 2) or imprisonment from 07 years to 15 years (Clause 3).

The offender can also be fined from 10,000,000 VND to 50,000,000 VND, prohibited from holding positions, practicing certain professions, or performing certain jobs for a period of 01 year to 05 years.

- For cases falling under the basic elements: The offender can be sentenced to non-custodial reform for up to 03 years or imprisonment from 06 months to 05 years.

- For cases falling under aggravated elements: The offender can be sentenced to imprisonment from 03 years to 07 years (Clause 2) or imprisonment from 07 years to 12 years (Clause 3).

The offender is also prohibited from holding positions, practicing certain professions, or performing certain jobs for a period of 01 year to 05 years.

- For cases falling under the basic elements: The offender can be sentenced to non-custodial reform for up to 03 years or imprisonment from 01 year to 05 years.

- For cases falling under aggravated elements: The offender can be sentenced to imprisonment from 03 years to 10 years.